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REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.1918 OF 2015

(Arising out of SLP(C) No.30573 2012)

STATE OF KARNATAKA TR.              … APPELLANTS SEC. HSG. & URB. & ANR.

VERSUS

VASAVADATTA CEMENT & ANOTHER         … RESPONDENTS

J U D G M E N T

SUDHANSU JYOTI MUKHOPADHAYA,J

Delay condoned. Leave granted.

2. This appeal has been preferred by the appellant- State of  Karnataka against the judgment dated 23rd June, 2010 passed by  

the High Court of Karnataka, Circuit Bench at Gulbarga in Writ  

Appeal No.2999 of 2004 (LB-RES). By the impugned judgment, the  

Division  Bench  of  the  High  Court  while  allowing  the  writ  

appeal observed as follows:

 “On a thorough consideration of the provision  of  Section  9  and  the  notification  produced  before  court  which  is  extracted  above,  it  discloses that there is no proper compliance of  posting the notification at the requisite places  as stated in Section 9.”

3. The factual matrix of the case is as follows:  The  Government  of  Karnataka  initially  by  draft  

Notification No. HUD 14 TML 84 dated 19th June/22nd July, 1986

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proposed  to  alter  the  existing  limits  of  Town  Municipal  

Council (hereinafter referred to as the 'Council' for short)  

Sedam for inclusion of Survey No. 630-642 within the municipal  

limits of town municipality (hereinafter referred to as the  

'municipality'), Sedam inviting objections and suggestions to  

the proposal from persons likely to be affected therein. It  

was  followed  by  Notification  No.HUD  14  TMT  84  dated  15th  

April/20th May, 1987, issued by Governor of Karnataka published  

in Karnataka Gazette dated 25th May, 1987 exercising the power  

conferred  by  sub-Section  (1)  of  Section  4  of  Karnataka  

Municipalities  Act,  1961  (hereinafter  referred  to  as  the  

'Act') altering the existing limits of the Council, Sedam as  

detailed therein.  A writ petition No. 10187 of 1987 was filed  

against the aforesaid notification by 1st respondent which was  

permitted to be withdrawn in view of subsequent notification  

issued by State Government on 28th November, 1995.

By the said notification dated 28th November, 1995, it was  

notified  that  having  received  no  objection  to  the  proposal  

within a said period of 30 days from the date of publication  

of notification dated 26th September, 1995 inviting objections  

from  persons  likely  to  be  affected  thereby  in  exercise  of  

power conferred by Section 3 read with Section 9 of the Act,  

the Governor of Karnataka specified  the smaller urban area in  

Schedule 'A  and the limits of which are specified in Schedule  

'B' and  further specified it to be called 'Town Municipal  

Council Area of Sedam having regard to:

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1) the  population  of  the  area  specified  in  Schedule-A  being not less than twenty thousand  but less than fifty thousand.

2)    the density of population in such area being not  less than one thousand five hundred inhabitants  to one square kilometer of area:

3)   the  revenue  generated  for  local  administration  from such area from tax and non-tax sources in  the year of the last preceding census being not  less than Rs.9,00,000/- per annum;

4) Apart from the percentage of employment in non- agricultural activities is not less than 15% of  the total employment.

4. The  first  respondent  filed  another  Writ  Petition  No.  14554/96  before  the  High  Court  of  Karnataka,  Bangalore  

challenging the said notification and the same was summarily  

dismissed on 19th August, 1997 observing that the matter is  

covered by the decision rendered in another case. A Civil  

Petition  No.1233/2000  in  WP  No.  14554/1996  was  filed  by  

respondent to rectify the order passed by the learned Single  

Judge.   While  reviewing  the  said  order,  the  petition  was  

allowed on 20th August, 2001 and the order dated 19th August,  

1997 passed in the writ petition No. 14554/1996 was set aside  

and  the  said  writ  petition  was  restored.  However,   after  

hearing the parties,  the learned Single Judge on 24th May,  

2004 dismissed the  writ petition on the ground that the  

action of inclusion of an area  to the limits of  an existing  

Town  Municipal  Limits  is  essentially  a  conditional  

legislation  and   hence  judicial   intervention  is  not  warranted.

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5. Against the said order, the respondent preferred the writ  appeal No. 2999/2004 which was allowed by the Division Bench  

by impugned judgment dated 23rd June, 2010.

6. Learned  counsel  appearing  on  behalf  of  the  appellant  while  assailing  the  impugned  judgment,  submitted  that  the  

procedure  prescribed  under  Section  9  of  the  Act  is  

substantially followed and complied with in this case. The  

third appellant under the directions of the first appellant  

had posted the notices announcing the inclusion of the local  

area  within  the  existing  municipal  limits  in  all  the  

conspicuous  places,  calling  for  objection  from  the  public  

within 90 days but no objections were received within the time  

stipulated.

7.  According to the learned counsel for the 1st respondent,  the notice has to be posted in area sought to be added or  

deleted  in  smaller  urban  areas.  In  the  present  case  the  

proclamation has been neither posted in the area of the 1st  

respondent factory which is a large area of around 1235.03  

acres which has mini townships nor has been posted in any  

other area sought to be included in the existing smaller urban  

area. The only places where it has allegedly been posted are  

four namely;

(1) Panchayat Office, Old Bazar, Sedam

(2) Railway Statio, Sedam

(3) Bus Stand, Sedam and

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(4) Notice Board of Town Municipal Council, Sedam;

which were existed in one area  and none of them are in area  

sought to be included in smaller urban area.

8. Further, according to the learned counsel for the 1st  respondent, the second part of Section 9 states that whenever  

it is proposed to add to or to exclude from a smaller urban  

area any inhabited area, it shall be the duty of the municipal  

council  also  to  post  a  copy  of  the  proclamation  in  a  

conspicuous  place,  meaning  thereby  in  the  inhabited  area  

sought to be included or excluded from the smaller urban area.  

The case of the 1st respondent is that it has a township which  

is an inhabited area with housing for workmen, management,  

etc. and thus it was mandatory for the municipal council to  

post  the  proclamation  in  conspicuous  places  in  the  said  

inhabited area which was sought to be included.

9. Learned counsel relied upon the following judgments for  the proposition that the proclamation has to be posted in the  

affected area or concerned locality and the objective of the  

proclamation is that the affected persons could come to know  

about the proposed change and that such a posting is mandatory  

and not merely directory.

(a) (1985)  3  SCC  1,  Collector  (District  Magistrate) Allahabad  &  Anr.  vs.  Raja  Ram Jaiswal.

(b) (1991)1 SCC 401, Syed Hasan Rasul Numa &  Ors. vs. Union of India & Ors.

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(c) (2011) 10 SCC  714, J&K Housing Board and  Anr. vs. Kunwar Sanjay Krishan Kaul & Ors.

(d) (2012) 6 SCC 348, Klsum R.Nadiadwala vs.  State of Maharashtra & Ors.

10. We have heard the rival contentions raised by the parties  and perused the records.

11. For  convenient  reference,  Section  9  of  Karnataka  Municipalities Act is quoted below:

  “9. Procedure  for  Constitution,  abolition,  etc. of smaller urban areas:

 Not  less  than  thirty  days  before  the  publication of any notification declaring any  local  area  to  be  smaller  urban  area,  or  altering the limits of any such smaller urban  area  or  declaring  that  the  local  area  shall  cease to be smaller urban area,  the Governor  shall cause to be  published in the official  gazette  in  English  and  Kannada,   and  to  be  posted  up  in  conspicuous  placed  in  the  said  local area in Kannada a proclamation announcing  that  it  is  proposed  to  constitute  the  local  area to be smaller urban area or to alter the  limits of the smaller urban area in a certain  manner or to declare that the local area shall  cease to be a smaller urban area,  as the case  may  be,   and  requiring  all  persons  who  entertain any objection to the said proposal to  submit the same,  with the reasons therefore,  in  writing  to  the  Director  of  Municipal  Administration within thirty days from the date  of the said proclamation,  and whenever it is  proposed to add or exclude from a smaller urban  area any inhabited area,  it shall be the  duty  of the  municipal council also to cause a copy  of  such  area.  The  Director  of  Municipal  Administration  shall,  with  all  reasonable  dispatch forward every objection so submitted  to the Governor.

No  such  notification  as  aforesaid  shall  be  issued by the Governor unless the objection, if  any, so submitted are in its opinion insufficient  or invalid.”

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Section 9 prescribes a mandate which is to be followed by  

the Governor before publication of notification declaring any  

local area to be smaller urban area; or altering the limits of  

any such small urban area; or declaring that the local area  

shall  cease  to  be  a  smaller  urban  area.  Firstly,  a  

proclamation  announcing  the  object/proposal  of  such  

notification should be published in the Official Gazette in  

both English and Kannada language. Secondly, such proclamation  

should be posted in conspicuous places in the said local area  

'in Kannada'.  Thirdly, such proclamation shall require all  

persons who has any objection to the said proposal to submit  

the same stating reasons within thirty days from the date of  

such proclamation.    

Section 9 further stipulates that whenever it is proposed  

to  add  or  exclude  from  a  smaller  urban  area  any  inhabited  

area, it shall be the duty of the municipal council to cause a  

copy  of  such  proclamation  to  be  posted  up  in  conspicuous  

places in such area. The phrase “such area” used herein means  

the inhabited area which is proposed to be added or excluded  

from the smaller urban area.

12. Section 9 of the Act has to be read in the light of  Article 243Q of the Constitution of India which is as under:

“243Q. Constitution of Municipalities:

(1) There  shall  be  constituted  in  every  State,-

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(a) a Nagar Panchayat (by whatever name called  ) for  a transitional  area,  that is  to  say,  an area in transition from a rural  to an urban area;

(b) a  Municipal  Council  for  a  smaller  urban  area; and  

(c) A municipal Corporation for a larger urban  area in accordance with the provisions of  this Part:

Provided  that  Municipality  under  this clause may not be constituted in  such  urban  area or part thereof as  the Governor may, having regard to the  size  of  the  area  and  the  municipal  services being provided or proposed to  be  provided  by  an  industrial  establishment  in  that  area  and  such  other factors as he may deem fit, by  public notification,  specify to be an  industrial township.

(2) In this article, 'a transitional area', 'a  smaller  urban  area'  or  'a  larger  urban  area'  means  such  area  as  the  Governor  may,  having  regard to the population of the area, the density  of the population therein, the revenue general  for  local  economic  importance  or  such  other  factors as may be deem fit, specify by public  notification or the purposes of this Part.”

13. The Provision of Section 9 is somewhat similar to Section  4 of the Land Acquisition Act, 1894 whereunder the posting of  

the notice in conspicuous/convenient places is mandatory.

If the argument advanced by the learned senior counsel  

for  the  first  respondent  is  accepted,  in  that  case  every  

affected person whose land is sought to be included for the

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purpose of alteration of the limits of the smaller urban area  

would claim that such notice must be posted in his land.

14. The Office of the Collector, Panchayat Office, Office of  Tehsildar, Office of  municipality, railway station and bus  

stand,  etc. of  the local area are  public places; which are  

expected to be visited by general public for one or the other  

reason.  Those  places  can  be  safely  expected  to  be  

conspicuous/convenient  places  for  posting  a  notice  about  

declaration of local area to be smaller urban area or altering  

the limit of any such smaller urban area as is done in the  

case of land acquisition.

15. If the stand of the 1st respondent is accepted that the  notice  should  have  been  posted  within  the  township  of  1st  

respondent,  then  it would frustrate the objective of Section  

9 of the Act as other affected persons whose land would also  

come under the purview of the said notification might not have  

any access to such notice posted within the boundaries  of the  

1st respondent's factory, being not a public place. In such  

case, every individual/affected persons will claim posting of  

such  notice  at  their  land  which  will  amount  to  giving  

individual notice to all affected persons.

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16. Notification dated 3rd October, 1995 was posted at four  conspicuous  places,  the  English  version  of  which  reads  as  

follows:

“No.TMC;95-96 Office of the TMC Sedam, dated 3.10.1995

NOTIFICATION Sub.: Publication of Govt. Circular Ref.:  Govt.  Circular,  bearing  No.:NE:407:MLR:95,  Bangalore,  Dated  26.09.1995

–------- With reference to the above subject,  the  

public of the Town Municipal area are informed  that vide Circular stated in the reference,  the boundaries of Sedam Town Municipalities is  proposed to be altered to extend the municipal  area. Any person having objections to the said  proposal  can  file  their  written  objections  within  30  days.  The  public  area  hereby  informed of the same by this notification.

Sd.

Chief Officer

SEDAM”

It  is  directed  that  the  copy  of  the  Notification should be posted at the following  places:

i)  Panchayat Office, Old Bazar, Sedam

ii) Railway Station,  Sedam

iii)Bus Stand,  Sedam

iv) Notice Board of Town Municipal Council,     Sedam.”

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17. Learned counsel for the 1st respondent accepted  that the  Panchayat Office of the 1st respondent  is at Old Bazar, Sedam,  

nearest railway station is at Sedam and the bus stand for the  

employees of the 1st respondent is at Sedam. This indicates  

that  all  the  persons,  who  are  said  to  be  affected  by  the  

notification, were informed  sufficiently by notice dated 3rd  

October, 1995 posted at the above said conspicuous places.

18. Learned  senior  counsel  for  the  1st respondent  next  contended that only the factory and residential area of the 1st  

respondent was added by notification dated 28th November, 1995  

but such submission cannot be accepted in view of the fact  

that apart from the land of 1st respondent, land belonging to  

others  were  also  shown  in  the  said  notification  dated  28th  

November, 1995.

19. However, on perusal of the original record,  we find two  notifications both dated 3rd October, 1995 having same number  

are on record.  Per se, both notifications dated 3rd October,  

1995 are same but there is a substantial difference in the  

last paragraph which mentions the places where copies of the  

notification were to be posted. In the 1st  notification dated  

3rd October, 1995, which appears to be original, it has been  

shown that the notice  to be  posted at four places namely,  

(i) Panchayat Office, Old Bazar, Sedam; (ii) Railway Station,  

Sedam; (iii)Bus Stand, Sedam and (iv) Notice Board of Town  

Municipal Council, Sedam. It is an old paper, laminated to  

ensure that it should not be damaged and in the back of it

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apart  from  thumb  impressions,  signatures  also  have  been  

obtained  from  different  individuals  to  show  that  the  

notification was posted in presence of those witnesses.

The other notification dated 3rd October, 1995 shows that  

direction has been issued to post the said notification at  

nine places, i.e. five more places apart from the aforesaid  

four  places  mentioned  in  the  first  notification.  The  

additional  five  places  include  the  premises  of  the  first  

respondent. The second notification is signed in green ink by  

some  other  officer.  Prima  facie  it  appears  that  the  

notification  dated  3rd October,  1995   containing   nine  

conspicuous places wherein it was to be notified,  signed in  

green ink by some officer has been prepared subsequently.  

20. Learned counsel appearing on behalf of the 1st respondent  requested the Court to initiate contempt proceedings against  

the  concerned  official  and  to  dismiss  the  appeal  as  the  

document has been created to mislead the Court.

21. The appeal has been preferred by the State of Karnataka.  The State has neither created any document nor filed the same  

before  the  High  Court  or  this  Court.  If  any  document  is  

created by any officer to keep it on record so as to produce  

it before the Court, it is a serious matter which requires to  

be inquired into by the concerned authority. In view of the  

fact  that  a  detailed  inquiry  is  required,  we  find  it  more  

feasible to direct the State Government to inquire into the

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matter and, if so necessary, file an FIR against the alleged  

officers who might have created the document containing the  

name of nine conspicuous places in the so called notification  

dated 3rd October, 1995, signed by the Chief Officer, Sedam in  

green ink.

The Chief Secretary, State of Karnataka is directed to  

hold an inquiry with regard to notification No. TMC:SEDAM:95-

96 dated 3rd October, 1995 issued from the office TMC, Sedam,  

signed  by  Chief  Officer,  Sedam  in  green  ink  wherein  nine  

places have been shown for posting the notifications. If it is  

found to be a document created subsequently, an FIR to this  

effect be lodged against the concerned officials for forging  

documents. Departmental proceedings be also initiated and an  

appropriate action be taken.

22. The appeal is allowed with the aforesaid observations and  directions.

………………………………………………………………………J.                                 (SUDHANSU JYOTI MUKHOPADHAYA)  

………………………………………………………………………J.   (VIKRAMAJIT SEN)    

NEW DELHI, FEBRUARY 16, 2015.